COURT FILE NO.: CV-14-505300, CV-14-505303;
CV-14-505309; and CV-14-15-542183
DATE: 20220923
SUPERIOR COURT OF JUSTICE – ONTARIO
Court File No.: CV-14-505300
RE: IDIL ABDULLAHI HASSAN, AMRAN ABDULLAHI HASSAN and ABDULLAHI ROBLE, Plaintiffs
AND:
CHRISTOPHER HUSBANDS, HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO AS REPRESENTED BY THE ATTORNEY GENERAL, HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO, TORONTO POLICE SERVICES BOARD, HAMILTON POLICE SERVICES BOARD, SURETY J.DOE #1 MARLON HUSBANDS, SURETY J.DOE #2 ANN-MARIE CAMPBELL, ONTREA/TEC ACQUISITION LIMITED, CF/TEC ACQUISITION LIMITED, ONTREA/TEC HOLDINGS INC., CF/TEC HOLDINGS INC., CADILLAC FAIRVIEW CORPORATION LIMITED and XYZ CORPORATION LIMITED, ONTREA INC. and T.E.C. LEASEHOLDS LIMITED, Defendants
Court File No.: CV-14-505303
RE: KING ARSAL NIRMALENDRAN-MORGAN, a minor by his Litigation Guardian, DONIKA SHEYANNE MORGAN and DONIKA SHEYANNE MORGAN personally, Plaintiffs
AND:
CHRISTOPHER HUSBANDS, HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO AS REPRESENTED BY THE ATTORNEY GENERAL, HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO, TORONTO POLICE SERVICES BOARD, HAMILTON POLICE SERVICES BOARD, SURETY J.DOE #1 MARLON HUSBANDS, SURETY J.DOE #2 ANN-MARIE CAMPBELL, ONTREA/TEC ACQUISITION LIMITED, CF/TEC ACQUISITION LIMITED, ONTREA/TEC HOLDINGS INC., CF/TEC HOLDINGS INC., CADILLAC FAIRVIEW CORPORATION LIMITED and XYZ CORPORATION LIMITED, ONTREA INC. and T.E.C. LEASEHOLDS LIMITED, Defendants
Court File No.: CV-14-505309
RE: VIGNESWARI NIRMALENDRAN, VELATHAM NIRMALENDRAN and NIRUSAN NIRMALENDRAN, Plaintiffs
AND:
CHRISTOPHER HUSBANDS, HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO AS REPRESENTED BY THE ATTORNEY GENERAL, HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO, TORONTO POLICE SERVICES BOARD, HAMILTON POLICE SERVICES BOARD, SURETY J.DOE #1 MARLON HUSBANDS, SURETY J.DOE #2 ANN-MARIE CAMPBELL, ONTREA/TEC ACQUISITION LIMITED, CF/TEC ACQUISITION LIMITED, ONTREA/TEC HOLDINGS INC., CF/TEC HOLDINGS INC., CADILLAC FAIRVIEW CORPORATION LIMITED and XYZ CORPORATION LIMITED, ONTREA INC. and T.E.C. LEASEHOLDS LIMITED, Defendants
Court File No.: CV-15-542183
RE: CONNOR STEVENSON, a minor by his litigation guardian CRAIG STEVENSON, CRAIG STEPHENSON, JO-ANNE FINNEY and TAYLOR STEVENSON, Plaintiffs
AND:
CHRISTOPHER HUSBANDS, HAMILTON POLICE SERVICES BOARD, SURETY J.DOE #1 MARLON HUSBANDS, SURETY J.DOE #2 ANN‑MARIE CAMPBELL, ONTREA/TEC ACQUISITION LIMITED, CF/TEC ACQUISITION LIMITED, ONTREA/TEC HOLDINGS INC., CF/TEC HOLDINGS INC., CADILLAC FAIRVIEW CORPORATION LIMITED, T.E.C. LEASEHOLDS LIMITED and ONTREA INC., Defendants
BEFORE: W.D. Black J.
COUNSEL: Richard Bogoroch, Heidi Brown, Alexandra Roman and Ryan Marinacci, for the Plaintiffs
Ian Mair, Bronwyn M Martin and Mirel Giugaru, for the Defendants, ONTREA/TEC Acquisition Limited, CF/TEC Acquisition Limited, ONTREA/TEC Holdings Inc., CF/TEC Holdings Inc., Cadillac Fairview Corporation Limited, ONTREA Inc., and T.E.C. Leaseholds Limited
HEARD: September 21, 2022
ENDORSEMENT
Overview
[1] The trial in this matter is scheduled to proceed commencing on or shortly after October 3, 2022. There are four cases being tried together or one after another (by Order of Master McAfee, as she then was, dated June 2, 2015).
[2] Each of the cases arises out of the tragic and widely publicized events of June 2, 2012, when the defendant Christopher Husbands shot and killed two men and injured several other people at the Toronto Eaton Centre Food Court.
[3] The plaintiffs in these actions are family members of the two deceased as well as one of the bystanders injured in the shooting and his family members.
[4] [2] Husbands did not defend these claims, and has been noted in default. Various other defendants have been released from the actions.
The Motion
[5] The upcoming trial will proceed only as against the defendants ONTREA/TEC Acquisition Limited, CF/TEC Acquisition Limited, ONTREA/TEC Holdings Inc., and Cadillac Fairview Corporation Limited (collectively the “Toronto Eaton Center” defendants or the “TEC” defendants).
[6] The TEC defendants’ motion before me seeks to have certain materials from the most recent criminal trial (of two trials that have occurred) admitted into evidence, and to strike the plaintiffs’ jury notices in these actions and have the trial proceed before me sitting as a judge alone.
[7] The items from the criminal trial that the defendants seek to introduce as evidence in the upcoming (civil) trial are: (a) O’Marra J’s Reasons for Sentence (the “O’Marra Reasons”) and portions of the transcript of Husbands’ testimony (the “Husbands testimony”).
Alleged “Essential Facts”
[8] The stated premise for seeking the introduction of those materials is that they are relevant to and impact on matters necessarily at issue in the civil trial. In the case of the O’Marra Reasons the additional stated objective is to prevent re-litigation of O’Marra J’s findings and potentially inconsistent results.
TEC Defendants’ Arguments
[9] Both O’Marra J’s Reasons and Husbands’ testimony are said to be necessary for the civil trial in order to demonstrate certain “essential facts”, which the TEC defendants describe as follows:
(a) That the two deceased, Nixon Nimralendran and Ahmed Hassan, were known to Husbands;
(b) On February 28, 2012, Husbands was attacked, confined, threatened and stabbed by a group of men that included Nixon Nirmalendran and his younger brother Nisan Nirmalendran;
(c) There was no evidence Husbands had an intention of committing a crime by the firearm he possessed on that day;
(d) There was no evidence Husbands intended to commit any offences by use of the handgun he carried when he went to the Eaton Centre and then down to the food court that day;
(e) Husbands appeared to be surprised at seeing at the Eaton Centre two of the men who had previously attacked him;
(f) The shooting was not self-defence, but there was evidence that Husbands had reason to fear those who had attacked him four months earlier;
(g) There was evidence of, and a rational reason for Husbands to be angry at the people who had attacked him, and at the very least, had a reason to deeply resent those who had injured him previously; and
(h) Husbands’ PTSD to some extent may explain the speed with which events unfolded.
What is Relevant
[10] In support of the proposed introduction of the O’Marra Reasons and the Husbands’ transcript with a view to proving these “essential facts” the defendants, in their factum and in Mr. Giugaru’s able submissions before me, cited interesting and persuasive case law as to why a court should, in certain circumstances, admit into evidence in a subsequent civil proceeding materials such as these from previous criminal or other proceedings.
[11] It struck me, however, and I raised with counsel at the outset of argument, that the materials in question, and the alleged “essential facts” are not actually relevant to the matters at issue in the civil trial that is about to proceed.
[12] That is, by reference to the pleadings, the claim against the TEC defendants is a negligence claim, based on alleged breaches of duties under the Occupiers’ Liability Act, RSO 1990, c. O2 (“OLA”) and under common law.
[13] Broadly speaking, the claim against the TEC defendants is that they had duties to deploy properly trained security personnel, to have appropriate security systems in place, and to properly respond to prevent or minimize the actions of Husbands and the consequences of those actions, and that their alleged failure to meet those duties resulted in the harm and damages that ensued.
[14] I had trouble understanding in that context how Husbands’ mindset on the day in question, or his reasons for fearing some of those whom he shot, could bear on the TEC defendants’ alleged duties and breaches.
[15] The response from counsel, again paraphrasing and distilling down what was a lengthier exchange, was that it is alleged that Husbands’ actions were foreseeable, that the OLA, in particular, requires an occupier to take reasonable steps to ensure that its premises are safe in the circumstances at hand, and that Husbands’ mindset (and pre-existing PTSD) meant that his actions were “spontaneous” and proceeded more rapidly than what might otherwise have been the case.
[16] It seems to me, and I expressed to counsel, that from the defendants’ perspective, unless they somehow had advance warning of Husbands’ pending actions, those actions, when they occurred, would necessarily appear spontaneous and sudden (whether they were or not). That is, the questions will be whether or not the defendants had adequate and appropriate security measures in place, including appropriately trained personnel, and how these personnel reacted in the circumstances. Again, seen in that way, unless the defendants somehow knew that Husbands would encounter the people he did, and react in the tragic way he did, I do not see how Husbands’ mindset could matter for purposes of the analysis that will be necessary to determine liability in this case.
[17] As I put to counsel, while “what” happened is relevant, “why” it happened does not appear to be.
[18] In my view, this may in fact jibe with the defendants’ position, in that from the defendants’ perspective there was no advance warning of what Husbands would do, and therefore no foreseeability with respect to Husbands’ specific actions.
Plaintiffs’ Confirmation of Scope of Claim
[19] The broader questions of foreseeability may yet play out at trial, for example the question of whether, given the defendants’ allegedly substandard deployment of security systems and personnel, it was foreseeable that a tragic event such as this might one day happen. Again, such questions, to the extent they even arise, do not depend on Husbands’ mindset and unique circumstances on June 2, 2012.
[20] Mr. Bogoroch for the plaintiffs confirmed in his submissions that there is no allegation that Husbands’ actions in particular were foreseeable, and Mr. Bogoroch specifically confirmed that the plaintiffs withdraw the allegation set out among the particulars of alleged negligence (in subparagraph 25.D(l) of the pleading in CV-14-505309, replicated in the other claims) that:
“Said Defendants and/or their servants, agents, and/or employees permitted Christopher Husbands to enter and/or remain in the Eaton Centre when they knew, or ought to have known, that he posed a danger to the safety and security of the Eaton Centre patrons, including the late Nixon Nirmalendran.”
[21] While this allegation was understandably included at the outset as “boilerplate” and potentially before a thorough understanding of the factual details, Mr. Bogoroch quite appropriately confirmed that the plaintiffs are not pursuing this particular allegation, nor any allegation that Husbands’ specific actions were somehow foreseeable. He confirmed that the claim is based in negligence, and based on alleged shortcomings of the TEC defendants security.
No Need to Strike Jury Notice(s)
[22] As such, in my view, the defendants’ stated concerns leading them to seek to introduce the O’Marra Reasons and the Husbands transcript do not in fact arise.
[23] Defendants’ counsel acknowledged, relative to the other relief sought in the motion, the striking of the jury notice(s), that that relief was premised on the defendants obtaining the orders to allow the O’Marra Reasons and the Husbands transcript to be admitted in the civil trial.
[24] That is, if those items were admitted, there would be additional complexity for the jury relative to how to treat that evidence, what weight to give it, and how to factor it into the anticipated expert testimony at trial.
[25] While I still would have been inclined, given the fundamental right to trial by a jury if a party requests it, to “wait and see” how the jury was grappling with that evidence, in the absence of that evidence the attendant risk of undue complexity goes by the wayside.
Conclusion
[26] While counsel argued that the proposed expert evidence itself, dealing with matters of standards of care for security and the like, might alone create complexity beyond the grasp of the jury, I am simply not persuaded that that is likely to be the case. Juries deal with complex expert evidence on a regular basis, including for example in medical malpractice trials and, as caselaw confirms, have routinely shown the capacity to understand and apply such evidence. While I will continuously monitor the jury, to the extent possible, to gauge their level of understanding of the evidence presented at trial, I am confident and optimistic about a jury’s ability to handle the demands that the evidence at trial will present.
Costs
[27] For these reasons, I dismiss the defendants’ motion, decline to admit the O’Marra Reasons or any excerpts from Husbands’ evidence at the second criminal trial into evidence at the pending civil trial, and decline to strike the plaintiffs’ jury notice(s).
[28] With respect to costs, while the plaintiffs have been the successful parties on this motion, it was only during responding submissions on the motion that counsel (quite appropriately) withdrew the allegation in subparagraph 25.D(l) within the claim in CV-14-505309 (replicated in the other claims). While again I understand the presence of that allegation in the pleadings, I can also understand the defendants’ impression that, in the face of that allegation, they were facing a claim premised in part on specific foreseeability of Husbands’ actions on June 2, 2012.
[29] As such, and given that neither party in any event filed a costs outline as required, I award the plaintiff only partial costs in the nominal amount of $2000.00 payable in any event of the cause at trial.
Additional Steps Before Trial
[30] Finally, I expressed the view during submissions, and both parties readily agreed, that it would be helpful, and should now be possible, to develop an agreed statement of facts as to what happened at the Eaton Centre on June 2, 2012. I understand that both parties may seek to play certain video footage of the events of that day, and I expect it will help the jury to have an agreed statement of facts to help them to follow and understand those events.
[31] We agreed that we will convene a trial management conference on Thursday, September 29, 2022, and it is my hope and expectation that, among other trial management items to be discussed, including proposed (and hopefully agreed) questions for the jury, the parties will confirm at that time an agreed statement of facts.
W.D Black J.
Date: September 23, 2022